The Obama Justice Department has recently been releasing secret memorandums produced in the early days of the war on terror, memos that the Bush Administration had distanced itself from as the war became more routinely enmeshed in the national consciousness.
Although I have not read all the memos in question, what is generally reported is their expansive view of the power of the presidency to prosecute the war on terror, primarily derived of the Commander-in-Chief authority. One in particular has raised the "oh my" level of alarm from those who a) view Presidential power with a jaundiced eye and/or b) view George Bush's exercise of Presidential power with a jaundiced eye. Most--if not all--of the memos were penned by the liberal legal community's Darth Maul...aka John Yoo...a brilliant legal scholar with a definite idea of the constitutional prerogatives of the President.
Let's look at one of these memos in detail, shall we? Here is how CNN reported it:
"Among the documents from the Justice Department's Office of Legal Counsel (OLC) is a 2001 memo declaring that in terrorism cases the military may conduct searches in the United States without a warrant if approved by the president. We conclude that the president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States," wrote John Yoo, then a deputy assistant attorney general. "We further believe that the use of such military force generally is consistent with constitutional standards, and that it need not follow the exact procedures that govern law enforcement operations."
That this opinion has raised eyebrows is to me, beyond Bush Derangement Syndrome. What this memo--in a meticulously researched, concisely written and superbly reasoned manner--asserts is that the President's Constitutional authority as Commander-in-Chief is not a power confined to wartime operations in other people's backyards. Invasion from the sea and land was a distinct possibility in a young nation when the Constitution was written, and the founders clearly wished to invest the executive with the vigor and authority needed defend the nation---even on its own soil. Many of the drafters of the document were indeed still drawing breath when the British sailed up the Potomac in and burned the White House. There was then and there is now a distinction made between the conduct of war and the conduct of law enforcement. The Constitution is purposeful in its protection of individual rights and liberties with respect to civil and criminal law, just as it is purposeful in granting to the President extreme and virtually limitless authority as Commander-in-Chief. Read the memo--the citations from the Federalist Papers give great insight into what the founders expected of the executive with respect to his war-making authority.
But you say, the war on terror isn't "really" a war. And besides, the Constitution and the Congress never meant for this to mean US troops operating inside the US. This is nonsense, as even a cursory reading of the Joint Resolution of September 14, 2001 reveals. Even if the Congress had not passed the Joint Resolution, the President's authority as Commander-in-Chief was then and is now sufficient to authorize him to use the armed forces to protect the nation when it is under attack.
Bottom line here? The Press, Democrats and some hearty libertarians want us to believe that the Bush Administration illegally expanded the authority of the President, and that all due haste must be made to return the office to its pre-9/11 boundaries. Nothing could be further from the truth. President Bush exercised powers he had all along, powers that I would dearly like for President Obama to guard jealously should he ever find recourse to them.